Path 2

Path 2

Spinning the Military Tribunals

March 26, 2002

The American people will agree that [these rules for military tribunals] are a fair and balanced product that the American people can be proud of. —Victoria Clarke, Pentagon spokeswoman, CNN, March 22

These concessions do little to change the structure of the tribunal as a makeshift court designed to produce predictable convictions. —Jonathan Turley, George Washington University law professor, Los Angeles Times, March 21

John Ashcroft began his testimony before the Senate Judiciary Committee on December 6 with a menacing attempt to intimidate American critics who say his and the president’s war on terrorism is causing collateral damage to civil liberties on the homefront.

It took a while, but despite this threat by the nation’s chief law-enforcement officer, choruses of dissent began to rise from bar associations, constitutional scholars, journalists, civil liberties groups, and citizens across the political spectrum.

Some of the sharpest criticism was directed at the hastily and sweepingly drawn draft of the president’s military order setting up the tribunals. The administration was surprised that the dissenters included members of the Washington legal establishment, as well as former military lawyers in the court-martial system.

The telegenic secretary of defense, Donald Rumsfeld, was put in charge of formulating the final regulations released last week, and they have mollified some of the critics. The trials will be open, with the press in attendance. The evidence will have to show guilt beyond a reasonable doubt.

A sentence of capital punishment will require a unanimous verdict by the military court. And the defendant will not only get free military lawyers, but can also hire a civilian attorney—if he can pay for one. Like most defendants on our death rows, many of the accused will be indigent.

The new regulations also provide for the presumption of innocence. But in an interview on The NewsHour With Jim Lehrer on PBS, Paul Wolfowitz, deputy secretary of defense, had a burst of candor. He said, “If anyone goes before this commission [as the tribunal is now called], it’s because we have every reason to believe they have been involved in some of the most terrible crimes of this century.”

It is not unreasonable to call this a presumption of guilt. Since there will be no appeals to our federal courts, and since the justice meted out is of a lesser standard than even that of courts-martial, The New York Times—in a March 22 lead editorial—is correct in saying that despite the improvements, “the tribunals would still constitute a separate, inferior system of justice, shielded from independent judicial review.” And is it certain that only noncitizens will be defendants?

Consider the standards for the evidence that will be used to prove guilt beyond a reasonable doubt. Barbara Bradley, National Public Radio’s first-rate reporter on our system of justice, gets to the core of this distortion of due-process, clearly making a point that eludes, for example, the editorial writers of The Wall Street Journal.

“It’ll be a lot easier to get evidence into these proceedings than, say, into a federal court or a military trial. Basically, the standard is any evidence that has ‘probative value to a reasonable person’ will be admitted, and that means hearsay or second-hand evidence could be admitted.”

Hearsay includes rumors, gossip, and statements that cannot be verified. And the supposedly independent “reasonable persons” weighing which evidence can be admitted will be military officers chosen by their commander in chief, George W. Bush. He is the very person who decides, in the first place, who will be hauled before the military tribunal.

Jonathan Turley, a constitutional law professor at George Washington University, has served as a lawyer in national security cases in federal and military courts. Turley, a reasonable person, emphasizes the distance between these tribunals and the American rule of law:

“It is clear that the new rules were written by prosecutors to govern their own prosecutions. The biggest changes are in areas that prosecutors find inconvenient, such as proving that evidence is authentic before using it. Accordingly, tribunal prosecutors will not have to ‘authenticate’ evidence—or even show a chain of custody.”

Where did the evidence come from originally? Whose hands did it pass through before being used against the defendant in a military tribunal? Could the so-called evidence have come from a person tortured by police in one of those countries where torture is a customary form of persuading prisoners to say what the authorities want to hear?

It is reasonable to expect that a prisoner convicted by the tribunal and sentenced to death, or to spend many of the rest of his years in prison, will want to appeal the verdict. Barbara Bradley explains his chances for due process (a quaint term in this context) both before the tribunal and during a subsequent appeal.

The tribunal itself “will be composed of between three and seven military officers,” she reports. “The presiding officer will have to be a JAG [judge advocate general] or a military lawyer, but the others don’t have to have any legal training at all.”

As for the board that will review the sentence, it will be composed of three or more military officers appointed by Secretary of Defense Rumsfeld. Rumsfeld can also temporarily include civilians—just like in the Old West, where the Dodge City sheriff could deputize “reasonable persons” to complete a posse.

Jonathan Turley makes the intriguing point that the review panel “will not be permitted to apply the U.S. Constitution or federal law. This creates the mere pretense of legal process. . . . The framers expressly denied the president the right to create and mete out his own form of justice. It takes more than a few rule changes to remove the ‘kangaroo’ from the court. One can shampoo and pedicure a kangaroo, but it does little to change the appearance of a president’s own private menagerie of justice.”